Is the FISA Court “AMERICA’s Silent Supreme Court” Unconstitutional?

The Constitution establishes a limited federal government, which includes a limited federal judiciary. Because the Framers feared that federal judges might act as super-legislatures and go about declaring unconstitutional whatever legislation or presidential actions displeased them, they wrote into Article III of the Constitution the absolute prerequisite of the existence of a case or controversy before the jurisdiction of any federal court could be invoked.

The case or controversy requirement was drafted to prevent courts from rendering advisory opinions whereby they simply declared that they had certain authority or that some statute or executive act was unconstitutional. The case or controversy requirement has been uniformly interpreted by the Supreme Court to require either a plaintiff whose allegations state a case of real palpable harm against a defendant, or a defendant in a criminal case who is in real jeopardy of losing life, liberty or property at the hands of the government before a federal court may have jurisdiction. – [1]

The United States Foreign Intelligence Surveillance Court (FISC, also called the FISA Court) is a U.S. federal court established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies. Such requests are made most often by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). Congress created FISA and its court as a result of the recommendations by the U.S. Senate’s Church Committee. In 2013, The New York Times said “it has quietly become almost a parallel Supreme Court.” [3]

While U.S. intelligence officials have insisted that the FISA process is thorough, little attention has focused on the judges themselves.
Selected by the Chief Justice of the Supreme Court, FISA judges serve for staggered seven-year terms. The court carries 11 judges at a time.
The trial court judges who sit on the FISA court wield great power working in secret. The court has come under scrutiny after Britain’s Guardian newspaper published details of a secret FISA court order requiring Verizon Communications to provide data to the NSA.

WINDOWLESS COURTROOM
Every few months, the FISA judges set aside their regular, public cases, travel to Washington, and take the bench inside a secure, windowless courtroom at 333 Constitution Avenue. Prosecutors and federal agents appear to answer questions about warrants before individual judges, rather than a panel.
Generally, the judges rotate on a week-long schedule. Three judges live in the Washington area and are available for emergencies. FISA judges do not receive extra pay.

Between 2001 and 2012, the FISA judges approved 20,909 surveillance and property search warrants – an average of 33 a week. During that 12-year period, the judges denied just 10 applications. Prosecutors withdrew another 26 applications. From 2007 to 2012, FISA judges also approved 532 “business record” warrant applications, the category used in the order that directed Verizon to release metadata on all phone calls inside the United States. No business record warrants were rejected. The records also show that FISA judges ordered “substantial modifications” to 497 surveillance and property warrants and 428 of the business record warrants. The statistics are especially intriguing for business record warrants for 2011 and 2012. Of 417 warrants authorized, the court “substantially modified” 376. – [2]

The statistics of total FISA warrant requests for electronic surveillance since beginning are: [3]

Years 1979 – 2013

Requests submitted 35,529

Requests approved 35,434

Requests modified 533

Requests denied 12

“The FISA Amendments Act of 2008, effectively gives the President – then President Obama – the authority to run surveillance programs similar in effect to the warrantless surveillance program [secretly implemented by George Bush in late 2001]. That is because New FISA no longer requires individualized targets in all surveillance programs. Some programs may be ‘vacuum cleaner’ programs that listen to a great many different calls (and read a great many e-mails) without any requirement of a warrant directed at a particular person as long as no US person is directly targeted as the object of the program. . . .“New FISA authorizes the creation of surveillance programs directed against foreign persons (or rather, against persons believed to be outside the United States) – which require no individualized suspicion of anyone being a terrorist, or engaging in any criminal activity. These programs may inevitably include many phone calls involving Americans, who may have absolutely no connection to terrorism or to Al Qaeda.” – truthcdm.com [4]

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The Foreign Intelligence Surveillance Court was established in 1978 when Congress enacted the Foreign Intelligence Surveillance Act (FISA), which is codified, as amended, at 50 U.S.C. §§ 1801-1885c. The Court sits in Washington D.C., and is composed of eleven federal district court judges who are designated by the Chief Justice of the United States. Each judge serves for a maximum of seven years and their terms are staggered to ensure continuity on the Court. By statute, the judges must be drawn from at least seven of the United States judicial circuits, and three of the judges must reside within 20 miles of the District of Columbia. Judges typically sit for one week at a time, on a rotating basis. – [5]

Law clerk, Hon. John F. Gerry, U.S. District Court, District of New Jersey, 1978-1979
Assistant prosecutor, Camden County, New Jersey, 1979-1981
Deputy attorney general, State of New Jersey, 1981-1982
Private practice, New Jersey, 1982-1992

FISC JUDGE MICHAEL W. MOSMAN — U.S. District Court for the District of Oregon

Designated Term: May 04, 2013 – May 03, 2020

Born 1956 in Eugene, OR

Nominated by George W. Bush on May 8, 2003, to a seat vacated by Robert E. Jones.

Confirmed by the Senate on September 25, 2003, and received commission on September 26, 2003.

Law clerk, Hon. Malcolm Wilkey, U.S. Court of Appeals for the District of Columbia Circuit, 1984-1985
Private practice, 1985
Law clerk, Hon. Lewis F. Powell, Supreme Court of the United States, 1985-1986
Private practice, Portland, Oregon, 1986-1988
Assistant U.S. attorney, District of Oregon, 1988-2001
U.S. attorney for the District of Oregon, 2001-2003

FISC JUDGE THOMAS B. RUSSELL — U.S. District Court for the Western District of Kentucky

Designated Term: May 19, 2015 – May 18, 2022

Born 1945 in Louisville, KY

Nominated by William J. Clinton on September 14, 1994, to a seat vacated by Edward H. Johnstone.

Confirmed by the Senate on October 7, 1994, and received commission on October 11, 1994.

Private practice, Boston, Massachusetts, 1981-1987, 1993-2004
Assistant U.S. attorney, District of Massachusetts, 1987-1990
Special counsel and chief of staff to the assistant attorney general, Criminal Division, U.S. Department of Justice, 1990-1993

FISA Amendments Act of 2008 – To amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes.

“The judges are hand-picked by someone who, through his votes on the Supreme Court, we have come to learn has a particular view on civil liberties and law enforcement,” Ruger said. “The way the FISA is set up, it gives him unchecked authority to put judges on the court who feel the same way he does.”- [2]

Supreme Court says FISA spying is ‘none of our business’

The Supreme Court of the United States has decided that individuals and organizations cannot challenge the constitutionality of FISA’s global surveillance regime without proof that they, in fact, are being spied upon, despite the fact that no one can know for sure that he’s being spied upon until after being arrested and shown the government’s evidence—to the extent that, too, isn’t deemed too secret to share. Justice Alito wrote the majority opinion for the five justices you’d suspect; Justice Breyer dissented on behalf of the other four. [9]

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